Written consent as a tool of racial equity

This piece first appeared on The Durham News website on August 22, 2014. It has been modified to include a video mentioned in the text of the article.

City Manager Tom Bonfield’s report to the City Council this week, in which he announced his plans regarding the embattled Durham Police Department, may lead to a department that is more accountable to the public. However, left unchanged, it is unlikely to make significant progress in reducing the large racial disparities evident in a decade’s worth of data on Durham policing.

Bonfield’s much-anticipated report was a direct response to a seven-month investigation by the Human Relations Commission, which found evidence of “racial bias and racial profiling” in the practices of the department.

The manager notably parted ways with the commission on one the most significant recommendations to emerge from its lengthy deliberations: requiring the use of written consent-to-search forms for vehicle searches in which officers lack probable cause to think a crime has been committed or reason to believe a motorist may be armed.

Such a policy has proven effective in numerous jurisdictions in reducing racial disparities related to run-of-the-mill traffic stops. The form clarifies for the motorist that they have agency over what happens to them and gives officers an opportunity to reflect on whether they have a genuinely race neutral reason for requesting permission to search. It also provides an important safeguard for motorists who deny officers consent to search, only to be searched anyway and have the officer later claim to have obtained verbal permission.

In Durham, black drivers are more than 100 percent more likely to be searched pursuant to a request for consent, although such searches are statistically less likely to uncover contraband than similar searches of whites. Even when a person has nothing illegal to hide, as is typically the case, the stakes are often high for black drivers.

As explored in the recently released Southern Coalition for Social Justice documentary, “Stories of Racial Profiling in Durham,” vehicle searches can be highly invasive, are often humiliating for the individual involved, sometimes result in damaged property, and frequently take half an hour or longer to conduct. Last year, in a city whose black population is approximately 40 percent, over 83 percent of people subjected to a vehicle search were black.

The commission proposed the written consent policy – which was put in place in Fayetteville in 2012 following a recommendation from the National Association of Black Law Enforcement Executives – because of large racial disparities that exist with respect to whom Durham officers search by way of consent. As our documentary reveals, behavior deemed innocuous in white neighborhoods is regularly regarded as suspicious in black ones, often giving rise to unreasonable searches.

While the manager’s proposal to increase the use of cameras will help to promote accountability and may make some dent in the racial search gap, the relevant literature suggests it will not have the same effect on curtailing coercive search behavior as will a written form crystalizing the right to refuse. Just earlier this week, the Fayetteville Observer interviewed a former police officer who explained that, “without a form, law enforcement officers can too easily manipulate or intimidate … drivers into giving consent after being stopped for a minor infraction.” In Durham, the data suggests these sort of coercive practices happen far too often.

Specifically, the high rate of consent searches relative to the number of searches overall is indicative of many officers going on fishing expeditions, with the resulting burden falling almost entirely on black motorists. Of the eight largest cities in the state, Durham posts the highest rate of consent searches of black motorists as a percentage of all searches. Nearly half of all searches (48.2 percent) conducted by Durham PD between 2008 and 2012 fell into this category, a percentage significantly higher than occurred in cities with comparable black populations (Fayetteville, 24.5 percent; Raleigh, 22.9 percent; Winston-Salem, 15.2 percent).

The manager’s report acknowledges the disparities but fails to provide an effective means to reduce them. While strongly encouraging police to document consent, the report ultimately leaves the decision to the discretion of the individual officer. This, all evidence suggests, is a mistake.

Written By Ian A.Mance
Ian A. Mance is an attorney at the Durham-based Southern Coalition for Social Justice (www.scsj.org).